IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA

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1 IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA STATE OF FLORIDA CASE NO: 10-XXXXXXXX v. CM DIVISION: HON. XXXX XXXXX MOTION TO SUPPRESS COMES NOW, Defendant CM, by and through his undersigned counsel and pursuant to Florida Rule of Criminal Procedure 3.190(h) and moves this Court to issue an order suppressing certain evidence that may be used in this case. The specific evidence sought to be suppressed is as follows: 1. All evidence obtained as a result of the search of Defendant s residence pursuant to any purported authorization to search granted by AC; 2. The contents of a shoe box purported to be located at the top of the closet in defendant s bedroom. Specifically, three bags containing 7.2 grams of suspect powdered cocaine, several individual empty clear plastic bags and two black portable digital scales; 3. Additional plastic bags located inside a safe found underneath a bed located in defendant s room; 4. All United States Currency located in Defendant s bedroom; 5. Several pieces of suspect crack cocaine located inside a container found in Defendant s bedroom; 6. An undisclosed amount of marijuana located inside of a dresser in Defendant s bedroom; 7. All statements made by Defendant to any law enforcement officers subsequent to the officers entry into the residence. The grounds for this motion are that all of the aforementioned evidence was illegally seized without a warrant by virtue of an unlawful detention & search of Defendant and his residence in violation of the Fourth Amendment of the United States Constitution made

2 applicable to the States through the Fourteenth Amendment of the United States Constitution and Article I, Section XII of the Florida Constitution. FACTS OF THE CASE On November 11, 2010, Detectives LG & FL of the Broward County Sheriff s Office responded to a dispatch call regarding a burglary in progress. The location of the alleged incident was XXX NW XX XX., XXXXX, Florida. While in route, the detectives were advised that there were several black males in the backyard of the residence who appeared to be kneeling down or otherwise attempting to hide. Upon arrival, the detectives noticed the individuals in the backyard. The detectives saw the individuals go inside the residence through a rear sliding glass door. It is important for the court to note that the detectives did not witness any force being used to enter the residence. The detectives, and other units that had responded to the scene, knocked on the front door and windows of the residence in order to make contact with the occupants. Defendant, CM, opened the door without any significant delay and advised that he lived at the residence, but that it was his mother s house and she was at work. Defendant gave consent for the officers to enter the residence to conduct a check and verify his story. Detective LG entered a bathroom and noticed a clear plastic bag of what he considered to be marijuana in plain view inside of a bathtub while conducting a safety sweep of the residence. During the same safety sweep, Detectives LG & FL entered a bedroom area of the house and smelled what Detective LG described as a strong aroma of marijuana emitting from within. Based on the bag of suspected marijuana and the smell of marijuana, Detective LG asked Defendant, CM, for consent to search the house. Defendant, CM, refused to provide consent to search. Contact was made with the owner of the residence, AC, who granted the detectives permission to search the residence. It is important for the court to note that while permission was requested to search the house, the actual search of the residence was limited to Defendants room. After discovering the aforementioned evidence, both Defendant and co-defendant were

3 taken into a room and advised of their Miranda Rights. Both Defendant and co-defendant made post Miranda incriminating statements concerning the contraband discovered in their room. LEGAL ANALYSIS I. THIRD PARTY CONSENT Although joint occupants may consent to a search of their premises, where consent is refused by the party against whom the search is directed, any subsequent consent by the other joint occupant is invalid. See United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Silva v. State, 344 So.2d 559 (Fla.1977), Pugh v. State, 444 So.2d 1052 (Fla. 1st DCA 1984); Lawton v. State, 320 So.2d 463 (Fla. 2d DCA 1975). It is only reasonable that the person whose property is the object of a search should have controlling authority to refuse consent. His rights are personal to him and derive from the United States Constitution. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Though a joint occupant should have authority to consent to a search of jointly held premises if the other party is unavailable, a present, objecting party should not have his constitutional rights ignored because of a leasehold or other property interest shared with another. See Silva at 562. In the issue at hand, the Detectives on the scene had identified the room that they intended to search as the room belonging to Defendant. Defendant was on hand and objected to the search of his room. Defendant. The Fourth Amendment rights requested to be waived were and are personal to Assuming arguendo that Defendant s mother was a joint occupant with sufficient authority over Defendant s bedroom to authorize a search, Defendant s refusal to grant the Detective s permission to search renders the subsequent consent by Defendant s mother invalid. II. COMMON USE, ACCESS AND CONTROL Any third party granting consent to search an area must have common use, access or control over the area. The determination as to whether an individual does have the authority to consent to a search is a matter which must be addressed based on the totality of the circumstances in the case. In this matter, aside from the fact that Defendant shared a residence with his mother, there is no evidence that the mother had the requisite authority to consent to a search of Defendant s

4 room. Additionally, Defendant denies that his mother has the legal authority to consent to a search of his room due to the fact that she did not have common use, access or control over Defendant's room. III. EXTENT OF AUTHORITY TO CONSENT TO SEARCH The fact that a third party may have the authority to consent to a search of an area is not necessarily co-extensive with authority to search personal property within an area. Accordingly, assuming arguendo that Defendant s mother did have authority to consent to a search of the room, Defendant s mother did not have authority to consent to a search of the personal property within Defendant s room including, but not limited to, the shoebox, dressers, nightstands, and safes located in Defendant s room. IV. INCULPATORY STATEMENTS The inculpatory statements made by Defendant post Miranda should be suppressed as the statements are fruit of the poisonous tree. CONCLUSION Based on the foregoing, all evidence obtained by the police against Defendant as a result of the illegal search and interrogation should be suppressed. WHEREFORE, Defendant, CM, respectfully requests this honorable court grant Defendant's Motion to Suppress in its entirety and for such other and further relief as this court may deem just and proper.

5 Certificate of Service I certify that a copy hereof has been furnished to the State's Attorney by hand deliver this the of, 20. Daniel Rosenberg, P.A. Daniel Rosenberg 1 E. Broward Blvd. Suite 700 Fort Lauderdale, FL Tel. (954) Fax (954) Attorney for CM